Canada’s lax copyright reputation puts artists’ livelihoods at risk

The apes in the new movie War for the Planet of the Apes use spears, guns and grenades to protect their way of life against human incursion, but no Hollywood screenwriter ever dreamed that the smart simians might want to control their own images, too. The notion of apes holding copyright seems too farfetched even for science fiction.

Nonetheless, since 2015, People for the Ethical Treatment of Animals (PETA) has been fighting in U.S. courts, claiming that a group of Indonesian macaques own the rights to the so-called monkey selfies orchestrated by British wildlife photographer David Slater in 2011. PETA is petitioning to control the income from these much-reproduced images on behalf of one of the macaques. The suit was dismissed in 2016 by a San Francisco judge who stated that if lawmakers had intended to extend such protection to animals they would have explicitly included them in the U.S. copyright act, but PETA launched an appeal and a hearing began earlier this month.

PETA's publicity stunt mocks the principle of copyright in an era that already doesn't have much respect for it. (It also trivializes animal-rights issues, but that's another story.) The suit implies that the monkeys were exploited; Slater argues that the huge popularity of the selfies has actually helped save them from extinction. But as the appeal hearings began, he also told the Guardian that he can no longer afford to pay his lawyer nor can he make a living as a freelance photographer: Since 2014, Wikipedia and another websites have refused to acknowledge his copyright in the photos, arguing they were created by animals – who can't hold copyright. In fact, Slater organized the shoots, held the tripod and coaxed the macaques into pressing the shutter. Without Slater there would be no monkey "selfies," but the professional photographer is now wondering if he should take up dog walking to earn a living.

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While PETA sues for copyright to grab headlines, the person with a legitimate claim is cast aside, his labour unrewarded in the rush to reproduce the monkey's pictures ad infinitum. That bitter irony seems all too typical of uncontrolled digital reproduction, the phenomenon that has killed the careers of many other photographers as well as musicians and authors. That's why it was so heartening this month to hear a Canadian judge call out York University for its refusal to pay for copying educational materials. Disrespect for copyright is rampant in academia and good news on this file can be hard to find.

York had established its own internal guidelines for "fair dealing" – that is how much unauthorized copying can be considered a fair use – but Justice Michael L. Phelan of the Federal Court argued that university administrators' main intention was "to obtain for free that which they had previously paid for."

York has been embroiled in this lawsuit with Access Copyright, the agency that collects the copying fees for authors and publishers, since 2011, when Access Copyright attempted to institute a new tariff that would recognize digital copying, and several universities rebelled. The university sector was further emboldened by 2012 amendments to the Copyright Act of Canada, which included an exemption for "educational purposes." The publishing community argued loudly at the time that the exemption was so broad they would need to resort to the courts to get fair dealing defined, and here we are, five years later, with a decision that finally recognizes that the universities don't get to decide for themselves what's fair and can't simply opt out of the tariff.

Critics of Access Copyright and advocates of broad exemptions for educational copying, which is also rampant in the K-12 school system, often argue that the fees will overburden impoverished students or cash-strapped educational institutions. Why it is that authors and publishers should pay for society's education with their livelihoods is never explained.

And they are paying: The amounts Access Copyright collects have dropped by 80 per cent since 2013 as the universities have used the new law to craft their own definitions of what they can copy for free. (I should acknowledge here that as part of the pool of Canadian authors registered with Access Copyright, I receive a cheque from the agency every year, but the sums never amount to more than a few hundred dollars.) Society might be considered to have already paid the tenured scholars whose titles might be registered with Access Copyright, but for independent non-fiction writers who were making their careers producing Canadian material for the educational market or short-story writers whose titles had been placed on course curriculum, the 80-per-cent reduction constitutes large losses. As these writers and their publishers are squeezed, they will stop producing new books.

The educational loophole has left Canada with the reputation of being lax on copyright; publishers as venerable as Oxford University Press have simply stopped publishing Canadian schoolbooks because they view this market as too risky.

No, it's not some evil giant international academic publisher that loses a few pennies when universities don't pay the tariffs; it is Canadian editors and writers who lose their livelihoods.

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The 2012 copyright amendments are up for a mandatory review this year; the federal government should take a long look at Phelan's decision if it wants publishers to keep producing Canadian educational materials and Canadian writers to delay the day where they take up their new careers as dog walkers.

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